Warren
Wallis originally brought this action in New Hampshire
Superior Court, seeking a judicial declaration of entitlement
to coverage under a short-term major medical insurance policy
issued by HCC Life Insurance Company. See N.H. Rev.
State. Ann. (“RSA”) 491:22 (“Declaratory
Judgments”). HCC Life removed the action, invoking this
court's diversity jurisdiction. It then filed two
counterclaims, seeking a judicial declaration that it
properly rescinded the policy or, in the alternative, that
Wallis is not entitled to coverage under that policy.

Pending
before the court is HCC Life's motion for summary
judgment. Wallis objects. For the reasons discussed, that
motion is granted.

Standard
of Review

When
ruling on a motion for summary judgment, the court must
“constru[e] the record in the light most favorable to
the non-moving party and resolv[e] all reasonable inferences
in that party's favor.” Pierce v. Cotuit Fire
Dist., 741 F.3d 295, 301 (1st Cir. 2014). Summary
judgment is appropriate when the record reveals “no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). In this context, “[a]n issue is
‘genuine' if it can be resolved in favor of either
party, and a fact is ‘material' if it has the
potential of affecting the outcome of the case.”
Xiaoyan Tang v. Citizens Bank, N.A., 821 F.3d 206,
215 (1st Cir. 2016) (citations and internal punctuation
omitted). Nevertheless, if the non-moving party's
“evidence is merely colorable, or is not significantly
probative, ” no genuine dispute as to a material fact
has been proved, and “summary judgment may be
granted.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249-50 (1986) (citations omitted). In other words,
“[a]s to issues on which the party opposing summary
judgment would bear the burden of proof at trial, that party
may not simply rely on the absence of evidence but, rather,
must point to definite and competent evidence showing the
existence of a genuine issue of material fact.”
Perez v. Lorraine Enterprises, Inc., 769 F.3d 23,
29-30 (1st Cir. 2014).

The
key, then, to defeating a properly supported motion for
summary judgment is the non-movant's ability to support
his or her claims concerning disputed material facts with
evidence that conflicts with that proffered by the
moving party. See generally Fed.R.Civ.P. 56(c). It
naturally follows that while a reviewing court must take into
account all properly documented facts, it may ignore a
party's bald assertions, speculation, and unsupported
conclusions. See Serapion v. Martinez, 119 F.3d 982,
987 (1st Cir. 1997).

Background

HCC
Life claims that when Wallis completed his application for
insurance, he was obligated, but failed, to disclose the fact
that he had been diagnosed with, and treated for,
“heart disease” within the past five years.
Consequently, a discussion of Wallis's medical history -
at least as it relates to his cardiac issues - is warranted.

I.
Wallis's Medical History.

On
January 9, 2011, Wallis went to the emergency room at the
Monadnock Community Hospital, in Peterborough, New Hampshire,
with complaints of rapid and erratic heart beats over a
period of about two hours, and difficulty sleeping for about
a week. As part of his medical history, Wallis reported that
one of his siblings suffers from cardiac arrhythmia, though
he did not know the details. Upon examination, it was noted
that he was in atrial fibrillation. He was given aspirin and
Lopressor (metoprolol), a type of drug known as a
beta-blocker, and he eventually converted back into a normal
sinus rhythm.[1] Later, an electrocardiogram (EKG) revealed
that, even though he was no longer in atrial fibrillation,
“changes were still prominent especially with the
anterior T-wave inversions that were of concern and the
incomplete left bundle-branch block and LVH.” Wallis
was admitted to the hospital for observation and a cardiology
consult.

The
following day, he met with a cardiologist, Dr. Beatty Hunter,
who reported Wallis's “permanent problem
list” as “organic heart disease, ” which
included “new onset atrial fibrillation, duration 2
hours, ” an “incomplete left bundle branch block,
” and “mild left ventricular hypertrophy.”
Later that day, Wallis was discharged and prescribed Toprol
XL, a low- dose beta-blocker, and aspirin (325 mg per day).
He was also told he could engage in physical activity
“as tolerated” and instructed to eat a
“heart healthy” diet. On January 18, 2011, he
underwent a stress echocardiogram, at which it was noted that
“there was exercised-induced ectopy: AFib/flutter at
peak heart rate.”

On
January 25, 2011, Wallis had a follow-up visit with another
cardiologist, Philip Fitzpatrick, M.D. Dr. Fitzpatrick
reported that Wallis “has a history of paroxysmal
atrial fibrillation”[2] and noted that his stress
echocardiogram “was remarkable for the development of
recurrent atrial fibrillation.” He noted that Wallis
seemed to be tolerating the beta-blocker well (though he did
report feeling a bit “fuzzy”). In his
“Clinical Summary, ” Dr. Fitzpatrick, like Dr.
Hunter, reported that Wallis suffered from “organic
heart disease, ” and noted the new onset atrial
fibrillation, incomplete left bundle branch block, and mild
left ventricular hypertrophy. Wallis was again prescribed a
daily beta-blocker and aspirin.

On June
15, 2011, at the request of Dr. Fitzpatrick, a third
cardiologist - Jamie Kim, M.D. - consulted with Wallis for
“symptomatic paroxysmal atrial fibrillation.” Dr.
Kim noted that Wallis presented to the hospital with atrial
fibrillation and has been “treated with ASA [aspirin]
and a beta-blocker since then.” He also noted that,
“there was some concern of possible side effects to
beta-blocker therapy initially, but [Mr. Wallis] states that
now he seems to tolerate the medication without noticeable
side effects.” In his “Clinical Summary”
and “Assessment, ” Dr. Kim noted that Wallis
suffers from “organic heart disease, ” but has
had “good control of arrhythmias on current regimen. I
agree with ASA [aspirin] and beta-blocker therapy for
now.” And, finally, Dr. Kim opined that if Wallis
should have “recurrences of symptomatic PAF, then
antiarrhythmic [medications] should be considered as the next
step. If he fails an antiarrhythmic, then ablation [a medical
procedure aimed at correcting atrial fibrillation] can be
considered. I discussed the importance of treatment of AF
within 48 hours should a sustained episode recur.”

In
October of 2011, Wallis's primary care physician, Dmitry
Tarasevich, M.D., gave Wallis a “Comprehensive Medical
Evaluation, ” at which Wallis reported that he had been
feeling “tired lately” and experiencing
occasional heart palpitations -a symptom of atrial
fibrillation. Dr. Tarasevich and Wallis also discussed the
possibility of Wallis undergoing the ablation procedure that
Dr. Kim had mentioned. Wallis saw Dr. Kim again in December
of 2011 for “follow-up of symptomatic PAF.” He
stated that he did not believe that he had suffered any
recurrences of atrial fibrillation, but reported that he was
feeling more fatigued, speculating that it might be related
to his beta-blocker therapy. Dr. Kim opined that “it is
difficult to know if Mr. Wallis is having symptoms related to
[atrial fibrillation] or to medical therapy. If it becomes
clear that PAF is driving his symptoms, we discussed options
for treatment, including alternative medication versus
catheter ablation. Preliminarily, he seems to favor the
latter approach.” In an effort to address a potential
source of Wallis's fatigue, Dr. Kim adjusted Wallis's
medications to taper him off the beta-blocker and recommended
a follow-up visit in two months.

In
February of 2012, Wallis again saw Dr. Kim as a
“follow-up of symptomatic PAF.” He reported that
Wallis had stopped taking the beta-blocker and was not aware
of having experienced further episodes of symptomatic atrial
fibrillation. But, they again discussed various options
(including ablation) should those symptoms recur. Dr. Kim
recommended a follow-up visit in six months.

In
August of 2012, Wallis had another office visit with Dr. Kim.
He reported that he continued to feel better off the
beta-blocker and had not had any recurrence of symptoms. Dr.
Kim did note that Wallis reported “recent insomnia and
anxiety; questionable etiology.” And, as he had done
previously, Dr. Kim continued to report that Wallis suffered
from “organic heart disease, ” with “left
bundle branch block” and “mild left ventricular
hypertrophy.” Although Wallis was no longer taking a
beta-blocker, Dr. Kim continued to prescribe daily aspirin
(325 mg). Dr. Kim also recommended another follow-up visit in
one year (though the record does not appear to contain Dr.
Kim's notes from that visit).

In
October of 2012, Wallis had an appointment with his primary
care physician, Dmitry Tarasevich, M.D. In discussing
Wallis's atrial fibrillation, Dr. Tarasevich noted that
Wallis was “Doing well. In regular rhythms. Trigger
avoidance on Aspirin. Follow-up with Dr. Kim yearly. No need
for ablation.”

In
summary then, Wallis was admitted to the hospital on January
9, 2011, diagnosed with atrial fibrillation, and treated with
a beta-blocker and aspirin. During a stress echocardiogram,
he experienced “exercised-induced ectopy: AFib/flutter
at peak heart rate.” Through at least June of 2011, he
tolerated the medications well and maintained good control of
arrhythmias. A few months later, in October of 2011, he
reported having occasional heart palpitations. He then
appears to have remained symptom free for at least a few
months and, in December of 2011, Dr. Kim began tapering him
off the beta-blocker. Nevertheless, he was instructed to
continue taking a daily regimen of aspirin. From the date of
his hospital admission, through at least August of 2012
(approximately 18 months) he was routinely seen by
cardiologists, as a follow-up to the incident that led to his
admission to the hospital. Each of the three consulting
cardiologists reported that Wallis suffers from
“organic heart disease.” And, during that period,
Wallis repeatedly discussed with his treating physicians the
fact that, due to his heart disease, he might need to undergo
either antiarrhythmic drug therapy, cardioconversion, or
catheter ablation.

II.
The Policy and Policy Application.

At some
point in early 2014, Wallis began looking into a short-term,
non-renewable medical insurance policy with HCC Life.
Insurance policies of that sort are intended to provide
comparatively low-cost, short-term medical coverage to people
who experience gaps in insurance coverage (due, for example,
to a change in jobs). Wallis testified that he looked into
getting coverage under the Affordable Care Act, ...

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